Judicial review of abolition of fee for committal proceedings

Judicial review of abolition of fee for committal proceedings

The Law Society has launched a High Court challenge to the Lord Chancellor's decision to abolish the committal fee in legally aided criminal proceedings for 'either way' cases.

The decision would remove all remuneration for legal representation in a significant number of cases, leaving many defendants without representation in the crucial early stages of their case. The Law Society anticipates that the measure will have a particular impact on people with mental health problems and non-English speakers.

The decision to bring legal action has not been taken lightly. With the coming into force of article 25 of the Criminal Defence Service (Funding) (Amendment) Order 2011 on 3 October 2011, the Society had no option but to issue proceedings after attempts to resolve this matter with the Ministry of Justice failed to make any progress.

The Society believes article 25 is unlawful because it will create a situation where solicitors will not be paid anything to undertake work in the magistrates' court for middle-ranking 'either way offences' if the defendant is committed to the Crown Court for trial.

This change will have three major implications.

First, it means that clients will not be assisted to apply for bail, and may well be detained in custody for longer than they otherwise would. Given the substantial cost of the increasing prison population, this is bad for the taxpayer as well as being bad for the client. A client at this stage will only have been charged with an offence, but not convicted, and is entitled by law to apply for bail if remanded in custody.

Secondly, clients will no longer get advice on whether they should agree to be tried in the magistrates' court, which may increase the number of them choosing trial by jury - precisely the opposite result from that intended by the Government.

Thirdly, the solicitor has an important role to play in ensuring that the criminal justice system runs efficiently, in particular by acknowledging where there is a case to answer so that the case can be committed to the Crown Court under a 'fast track process'. If the client is not represented, a much longer and more expensive process will have to be undertaken in every case.

Law Society chief executive Desmond Hudson says:

'Throughout the consultation process, from the Government's legal aid reform Green Paper in November 2010, the consultation on the draft Funding Order and up to the Lord Chancellor's decision to make the Funding Order, we have tried to explain why this change is a mistake for both the criminal justice system and the taxpayer. Sadly the Ministry has not been persuaded. We have therefore been left with no alternative but to pursue the litigation option which we tried hard to avoid.'

Article 25 abolishes altogether the fee previously payable to legal representatives for all work undertaken in representing defendants in the magistrates' courts in either way cases where the defendant is committed to the Crown Court, up to and including the committal hearing. This can amount to serious and complex work in 'either-way' cases which are considered serious enough to be heard by jury trial in the Crown Court, because the magistrates' court declines jurisdiction or because the defendant exercises their constitutional right to elect trial by jury.

This would leave clients to represent themselves for the initial important hearings that take place in the magistrates' court, or defence solicitors to undertake considerable amounts of work for nothing whatsoever, whilst the prosecution throughout this will be paid as normal.

The Society considers that article 25 is unlawful on the following grounds:

It is unlawful under the Access to Justice Act 1999. The 1999 Act provides that once a representation order has been granted to a defendant, the Legal Services Commission is obliged to fund his representation.

The 1999 Act does not allow the Lord Chancellor to make an order which means that a solicitor will receive no funding at all when representing a defendant in a necessary part of the criminal proceedings.

Article 25 is contrary to the policy and objects of the 1999 Act, namely that individuals involved in criminal proceedings should have access to such representation as the interests of justice require.

The Society also considers that article 25 is irrational, because it proceeds from a serious misunderstanding of the meaning of 'committal proceedings'. The Lord Chancellor seems to have wrongly understood 'committal proceedings' to mean the committal hearing and work directly associated with it; whereas in fact the definition of 'committal proceedings' is far wider, and encompasses all “proceedings in a magistrates' court up to and including a hearing at which an assisted person is committed to the Crown Court for trial under section 6(1) or (2) of the Magistrates' Courts Act 1980”.

The London Criminal Courts Solicitors' Association and the Criminal Law Solicitors Association have supported the Law Society in bringing these proceedings.

Acting for the Society in these proceedings are Stephen Grosz and Gwendolen Morgan of Bindmans LLP, instructing Sam Grodzinski QC and Helen Law of Matrix Chambers.

Either way offences may be dealt with either by the magistrates' court or the Crown Court.

[Distinct from summary offences which are the least serious offences and may only be dealt with in the magistrates' court, and indictable only offences which are the most serious and may only be dealt with by the Crown Court.]